For Modern Jurors, Being On A Case Means Being Offline

More courts are asking jurors to avoid social media services and tools that have become an integral part of modern life, like Twitter, Facebook, email, texting, instant messaging and Internet research.

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Originally published on June 24, 2013 6:10 pm

In the Mercer County Courthouse in Trenton, N.J., John Saunders, a jury manager, spends his weekdays shepherding potential jurors. Much of what he tells them regards the paraphernalia of 21st century life: cellphones, tablets and laptops. These are OK to use in the waiting room, he tells them. "We realize life does not stop."

But in the courtroom, it's all phones off. Laptops and iPads stay with Saunders, and jurors are given a tag to reclaim their items. "Unlike the airport, when you return, your item will be there, and no baggage charge guaranteed," he says.

While jurors were once warned not to discuss with others the cases they were hearing, warnings to jurors in today's social media age have become much more explicit. Increasingly, jurors are hearing about what they should not do with the devices that connect them to the world.

In New Jersey, judges like Travis Francis, the assignment judge in Middlesex County, have adopted model instructions to jurors that sound like something out of a Best Buy catalog.

"Do not use any electronic device," he tells them, "such as the telephone, cell or smartphone, BlackBerry, iPhone, PDA computer, the Internet, email, any text or instant message service, any Internet chat room, blog or website such as Facebook, MySpace, YouTube or Twitter to communicate to anyone any information about the case."

Doing any research or investigating of the case on your own is also forbidden here, as is "visiting the scene" virtually. "Jurors are specifically instructed not to use Google Earth or any other similar utility to visit the scene of an accident or crime," Francis says.

Putting Modern Communication On Hold

These lengthy lists of digital don'ts grow out of a conflict in modern life: Jury duty requires a juror to limit his or her communications with others. To many 21st century Americans, those limits might feel like solitary confinement.

Paula Hannaford-Agor, who directs of the Center for Jury Studies in Williamsburg, Va., says that in an age when everyone's used to instant digital information — finding a restaurant, paying a bill, checking a bank balance — "it's very difficult and really counterintuitive for many jurors" to be told they must refrain from using the Internet to research a case.

But how often does a juror actually visit a crime scene on Google Earth, tweet about the case she's on or look up the filings? Hannaford-Agor says a 2010 Reuters study found that only 90 verdicts were challenged on the basis of juror digital disobedience between 1999 and 2010. But, she notes, those are the only reported cases or instances that were admitted to. Now, Hannaford-Agor says she typically hears about one case a week in which jurors looked up legal terms on the Web or shared their jury duty experience on social media.

Those kinds of communications have sparked various new rules and procedures across the country. In New Jersey, one case involving jury deliberations in a 2011 Bergen County drug trial made a big impact on judges all over the state, including Superior Court Judge Robert Billmeier, who hears criminal cases in Trenton.

"It was actually the foreperson of the jury who got on the Internet despite the judge's instructions not to," Billmeier says. He found information about a minimum prison term that he thought would pertain to the defendant if he was found guilty. "As it turned out, his research was inaccurate," Billmeier says, but that information led to a deadlocked jury and a mistrial. The juror was fined $500.

Where's The Line?

Billmeier has since adopted a juror pledge. Jurors must agree to not engage in any online research or communication pertaining to their trial — and jurors must sign under penalty of perjury. That, he says, "brings home to them how important this instruction is not to get on the Internet, not to use social media, to follow the court's instructions — or there could be adverse consequences."

But what about a tweet that reveals nothing more than what one might tell a spouse, like, "I'm on a jury in a drug case," for example?

The problem, Billmeier says, is that a tweet is an invitation to a conversation. And while such a tweet may not necessarily get someone dismissed or get a verdict overturned, the lines between unacceptable and acceptable tweets are likely to get less clear, says Hannaford-Agor.

"We're starting to hear, begrudgingly, a lot more discussion about under what circumstances is a juror's conduct of going online or posting something actually harmful error," she says.

Meaning that, with social media so integral to our lives, there are some circumstances of jurors going digital that society may simply have to accept as harmless.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

ROBERT SIEGEL, HOST:

Today on All Tech Considered, with an eye on how social media is changing American life, we summon you to jury duty.

JOHN SAUNDERS: Good morning.

UNIDENTIFIED GROUP: Good morning.

SAUNDERS: And once again, I welcome you. I'm John Saunders...

SIEGEL: We are in Trenton New Jersey at the Mercer County Courthouse where Mr. Saunders, who is a pastor on weekends, shepherds potential jurors on weekdays. And much of what he tells them is about the paraphernalia of 21st century living.

SAUNDERS: While you are in this particular room, you can utilize your cell phone or your iPad while you're working here. We realize that life does not stop. You've come to serve the jury and we appreciate that.

SIEGEL: But in the courtroom, it's cell phones off and the laptops and iPads stay with John Saunders.

SAUNDERS: You will get a tag like the airport. The top half of the tag will go on your item. Bottom half will go with you. Unlike the airport, when you return, your item will be there. And there will be...

(LAUGHTER)

SAUNDERS: ...no baggage charge guaranteed for that.

SIEGEL: In courthouses all over the country, potential jurors hear similar instructions about smartphones, tablets and laptops, And increasingly, they're hearing about what they should not do with the devices that connect them to the world. In New Jersey, judges like Travis Francis, the Assignment Judge in Middlesex County, have adopted model instructions to jurors that sound like something out of a Best Buy catalogue.

TRAVIS FRANCIS: Do not any electronic device, such as: the telephone, cell or smartphone, BlackBerry, iPhone, PDA computer, the Internet, email, any text or instant message service, any Internet chat room, blog or website such as Facebook, MySpace, YouTube or Twitter, to communicate to anyone any information about the case.

SIEGEL: And don't do any research or investigating of the case on your own.

Just as the Digital Age has brought new meaning to words like friend and text, it has done the same to phrases that jurors have been hearing for ages. For example...

FRANCIS: Visiting the scene; jurors are specifically instructed not to use Google Earth or any other similar utility to visit the scene of an accident or a crime.

SIEGEL: The instructions that Judge Francis read for us grow out of the increasing awareness of a conflict in modern life. Jury duty requires us to limit our communications with others. To a well-wired 21st century American, those limits might feel like solitary confinement.

Paula Hannaford-Agor, who directs of the Center for Jury Studies in Williamsburg, Virginia, says these days, everyone's used to instant, digital information.

PAULA HANNAFORD-AGOR: Where am I going to lunch? I want a review of the restaurant. I'm paying a bill. I want to check my bank balance. We do this so automatically now that it's very difficult and really counter-intuitive for many jurors coming in, to be told all of a sudden, you can't do this.

SIEGEL: Hannaford-Agor says she finds it ironic that the courts are going out of their way to be accessible online, to be more transparent.

HANNAFORD-AGOR: And as I'm going out and talking to courts all the time, I say, you know, one thing to be thinking about is how many clicks away is your court's webpage that talks about information for jurors, from information on the case. Can a juror actually go and say, OK, I'm summoned for next Monday, let me just look up and see what trials are scheduled for next Monday? Oh, here's the indictment. Oh, here are the filings.

SIEGEL: How often does this happen? How often does a juror actually visit a crime scene on Google Earth or Tweet about the kind of case she's on or look up the filings? Well, Paula Hannaford-Agor says a study a couple years ago, found that in a period of just over a decade, only 90 verdicts were challenged on the basis of juror digital disobedience. But, she says, those are only the reported cases or the instances that were admitted to.

HANNAFORD-AGOR: Frankly, I hear about probably about a case a week.

SIEGEL: Cases of jurors who looked up legal terms on the Web or who shared the jury duty experience on social media.

We chose to visit New Jersey, but, in fact, in states all over the country, jurors on the Internet are leading to various new rules and procedures. One New Jersey case involved jury deliberations in a Bergen County drug trial last year. It made a big impact on judges all over the state, including Judge Robert Billmeier, who hears criminal cases in Trenton.

JUDGE ROBERT BILLMEIER: It was actually the foreperson of the jury who got on the Internet, despite the judge's instructions not to do that. And he found information which he felt, if the jury found the defendant guilty of the charge, he was facing a minimum of 10 years of state prison. As it turned out, his research was inaccurate.

SIEGEL: But that information led to a deadlocked jury and a mistrial. The juror was fined $500.

Judge Billmeier has since adopted a juror pledge.

BILLMEIER: All right ladies and gentlemen, the jury pledge reads as follows...

SIEGEL: Here he is, ironically in a case known in Trenton as the MySpace murder trial. That's right, the defendants are accused of plotting a murder on social media. Judge Billmeier is having the jurors sign that pledge.

BILLMEIER: Specifically I will not use the Internet to conduct any research into any of the issues or parties...

SIEGEL: The key line of the pledge is this one...

BILLMEIER: Signed under penalty of perjury and therefore I'd asked you to sign your name on the first line, print your name on the second line...

I think the fact that you have a juror now signing a piece of paper under penalty of perjury brings home to them how important this instruction is not to get on the Internet, not to use social media, to follow the court's instructions or there could be adverse consequences.

SIEGEL: I asked Judge Billmeier about a tweet that might be no more revealing than what we would tell a spouse: I'm on a jury. It's a drug case.

BILLMEIER: Even though it's rather vague, someone may tweet back to you, and said: Oh, drug case, that's the scourge of our country. So...

SIEGEL: Or why is state wasting our money prosecuting drugs when we should be legalize...

BILLMEIER: Exactly.

SIEGEL: ...every drug.

BILLMEIER: Exactly.

SIEGEL: The tweet, he says, is an invitation to a conversation. When searched the hashtag jury duty, here's some of what we found. Carly B. tweeted, yes, I'm the weirdo at jury duty with the cell phone, ereader and tablet on all three at the same time, 'cause that's how I roll. Bubbly Poo tweeted, jury duty today, shoot me now. And Weird Beard's tweet was, we were just told to turn our phones off. I'm thinking of making a run for it.

Now, they're not tweeting about a case. Paula Hannaford-Agor of the Center for Jury Studies says that would get them dismissed or, if not, possibly get a verdict overturned. Today, she says, those lines are clear but that's likely to change.

HANNAFORD-AGOR: We're starting to hear, begrudgingly, a lot more discussion about under what circumstances is a juror's conduct of going online or posting something actually harmful error.

SIEGEL: Meaning, there are some circumstances of jurors going digital that we may have to accept as harmless. It's just too much a part of our lives. Here's another aspect of social media in the courtroom. If you're a potential juror, assume that your online history, including your tweets and Facebook page, might be read by the lawyers who could strike you from the jury.

In New Jersey, the right to Google jurors in the courtroom was established in a medical malpractice suit by the plaintiff's lawyer Mitch Mackelwitz(ph).

MITCH MACKELWITZ: This has been fairly well publicized. A lot of people who say, oh, you're the Google guy when I'll meet them in the course of litigation. Oh, you're the Google guy.

SIEGEL: During jury selection in 2008, Mackelwitz had his laptop, armed with the research that he'd already done on the members of the jury pool. When the defense lawyer objected to Mackelwitz, as he put it, Googling the jurors, the trial judge, ruling in the interests of a level playing field said Mackelwitz could not use his laptop to Google potential jurors in the courtroom.

Mackelwitz lost the case and appealed that ruling.

MACKELWITZ: At the appellate argument, one of the judges started asking my adversary some questions and they started out along the lines of, if you are a kid's computer ordering pizza to be brought to the courtroom, would that be okay? Yes. If he was contacting his secretary to arrange to pick up his dry cleaning, would that be okay? Yes. If he then accessed the law library to look at a case, would that be okay? Yes.

If he Googles a juror, is that okay? No.

SIEGEL: Mackelwitz still lost the case on appeal but he did win an observation from the appeals court that the trial judge was wrong to have deprived him of a lawyer's right to Google potential jurors in the courtroom. One complicating factor in all this is that studies show jurors are typically more tech-savvy than judges who are more tech-savvy than lawyers.

As Mitch Mackelwitz told me, after the appellate ruling, a paralegal from another firm called him and said, my attorney wants to know what site you use when you Google the jurors. Transcript provided by NPR, Copyright NPR.